Nequinto, Rudmae Amaquin v. Torture Claims Appeal Board
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HCAL 1002/2024 [2026] HKCFI 5412 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1002 OF 2024 BETWEEN
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 26 June 2024, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 20 April 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board rejected the applicant’s claim for non-refoulement protection in Hong Kong as not substantiated on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 25 April 2022, which rejected the applicant’s non-refoulement claim. Amendments 3.In Form 86, the applicant named the Board as the putative respondent but spelt the Board’s name wrong, and did not name any putative interested party. 4.In fact, the Director should be named as the putative interested party. 5.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and to add “Director of Immigration” as the putative interested party. Late application 6.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made. 7.However, the applicant filed Form 86 on 26 June 2024, which was more than 14 months after the Board’s Decision (made on 20 April 2023). The applicant was hence late for more than 11 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application. 8.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:
9.The applicant did not make any application for extension of time and provided no explanation for the delay when she filed the Leave Application. 10.A delay of more than 11 months is very substantial, and there is simply no reason for this court to extend the time for the applicant to make the Leave Application when no explanation was given for the delay at all. More importantly, there is no merit in the Leave Application whatsoever as discussed below. 11.Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application. The Leave Application can therefore be dismissed on the ground of being made out of time alone. 12.However, for the sake of completeness, this court will still deal with the Leave Application as discussed below. The applicant’s case 13.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above. 14.In sum, the applicant claimed for non-refoulement protection because if refouled to the Philippines, she would be harmed or killed by her husband, who had physically abused her in the past, as she had stopped sending money to him. Disposal on paper 15.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper. Grounds for judicial review 16.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). 17.The applicant did not advance any grounds for the intended judicial review in Form 86. In her supporting affidavit dated 26 June 2024, the applicant mentioned that she was not satisfied with the Board’s Decision because internal relocation was not possible for her, as she was still not safe and her husband still threatened her. The applicant also mentioned that she was worried about her own safety and the safety of her kids, her memory was not strong enough and that was why “some” [sic] she also forgot. Discussion 18.First of all, the applicant’s danger from her husband in her country had been duly assessed but rejected by the Board. If she intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. 19.With regards to the applicant’s claim in her affidavit that internal relocation was not possible for her, this court notes that the Board actually rejected her claim for non-refoulement protection for reason that it did not consider that the applicant faced a real risk of the proscribed harm from her husband if she was refouled to the Philippines. The Board only considered the viability of internal relocation for the applicant for the sake of completeness, and had given its reasons in paragraphs 56 and 57 of the Board’s Decision for its view. 20.This court finds no fault or unreasonableness in the Board’s said finding. 21.As to the applicant’s assertion that her memory was “not strong” and hence sometimes she forgot, the Board discussed this issue in paragraph 41 of the Board’s Decision, and explicitly stated that it did not consider the applicant’s inability to remember dates affected her credibility but it caused the Board difficulty in following her claim. In fact, as aforesaid, the Board rejected the applicant’s claim as it found that the applicant did not face a real risk of the proscribed harm from her husband if she was refouled to the Philippines. Her claim was not rejected on adverse finding on her credibility due to her inability to recall details as to the dates of the events she described. 22.This court also notes that the Board had addressed the applicant’s worries about her sons in paragraph 48 of the Board’s Decision. In fact, the applicant’s elder son is an adult now, and the Board was plainly aware of the fact that her sons were taken care of by the applicant’s parents, and all of them were not disturbed by the applicant’s husband. 23.Thus, all the matters raised by the applicant in her affidavit could not amount to any valid ground to challenge the Board’s Decision. 24.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524). 25.Thus, despite the fact that the applicant failed to advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid. 26.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 12 December 2022. The applicant was present and was thus given the chance to present her case to the Board in person. 27.As can be seen from the Board’s Decision, the Board gave full and detailed reasoning in rejecting the applicant’s claims. Its findings and assessment of the applicant’s claim were laid out in paragraphs 41 to 58 of the Board’s Decision, and it is not necessary to repeat the same here. 28.In gist, the Board found that the applicant had only made bare assertions and she presented no objective proof to support them. The applicant claimed that she had never seen her husband since 2017, and the alleged death threat from her husband was only a hearsay from the applicant’s sister, who told her about the threat in November 2021. As to the assault by the applicant’s husband which was the subject of the applicant’s complaint to the local district office, the applicant needed no medical treatment and withdrew the complaint herself. 29.Further, the Board found that given the unemployment status of the applicant’s husband and his drinking and drug taking problems, it was unlikely that the Alpha Kappa Rho International Fraternity and Sorority, which was involved in humanitarian projects and services to others, would assist the applicant’s husband to trace the applicant. 30.Moreover, the Board considered that the applicant had strong family support, and in view of the applicant’s years of education and work experience, the Board found it unbelievable that the applicant did not accept that the authorities in the Philippines would treat any threats made against her and any further assaults upon her as unworthy of criminal investigation and prosecution if there was sufficient evidence to support such a course of action. 31.Thus, the Board did not find that the applicant faced a real risk of any of the proscribed forms of harm from her husband and concluded that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the USM. 32.The finding of facts relating to a non-refoulement claim, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision. 33.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 34.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused. Conclusion 35.For reasons aforesaid, the Leave Application is dismissed for being made out of time and devoid of merits. Dated the 23rd day of September 2026
Where leave to apply has been granted, applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the respondent’s evidence
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